13.1 The authorities have a duty to facilitate assemblies
States have an obligation to facilitate peaceful assemblies. This means, at a basic level, that those exercising the right must have access to public space and must be protected, for example when they are confronted with a violent counter-demonstration (see Assembly Section 12.2) or if persons with violent intentions or agents provocateurs join the assembly (see Assembly Section 13.3). The UN Human Rights Council urges States to:
facilitate peaceful protests by providing protestors with access to public space and protecting them, without discrimination, where necessary, against any form of threat and harassment, and underlines the role of local authorities in this regard.
Furthermore, the State must provide a number of basic and free services, as identified in the Joint report on the proper management of assemblies:
The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.
The IACHR has emphasized the importance of operating plans, including traffic management measures:
the competent institutions of the state have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area.
The ECtHR has similarly recognized an obligation for the authorities to take
necessary measures in order to minimise any disruption to traffic or other security measures such as providing first-aid services at the site of the demonstrations, in order to guarantee the smooth conduct of the events.
More generally, the duty to facilitate implies a wide range of actions on the part of the authorities to ensure they are able to ensure the safe and effective conduct of the right to assemble. This includes the training of law enforcement personnel (see Assembly Section 13.6), effective communication with organizers and participants (see Assembly Section 13.5), and proper preparedness for assemblies (see Assembly Section 13.7).
The duty to facilitate assemblies applies also to assemblies that have not been formally notified to the authorities (see Assembly Section 11.3), including spontaneous assemblies (see Assembly Section 11.3). The IACHR has stated, for example:
In those states in which notification or prior notice is called for one must recall that this does not mean that the states only have the positive obligation to facilitate and protect those assemblies notice of which is given.
The OSCE-ODIHR has published a detailed Human Rights Handbook on Policing Assemblies that aims to provide guidance to the police on how to facilitate the right to assemble peacefully. Another in-depth resource in this area is the AComHPR’s Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.
13.2 May the authorities use stop-and-search and arrest powers before an assembly?
The Joint report on the proper management of assemblies urges States to refrain from undue stop-and-search operations or arrests of persons on their way to an assembly:
Intrusive anticipatory measures should not be used in an assembly. Participants on their way to an assembly should not be stopped, searched or arrested unless there is a clear and present danger of imminent violence.
This view finds support in the case-law of the ECtHR.
In Gillan and Quinton v. the United Kingdom, the Court emphasized that the law should limit the discretion of individual police officers to conduct searches, including of prospective participants in demonstrations. The applicants – one of them a journalist, the other a protestor – had been on their way to a demonstration against an arms fair in London when they were stopped and searched. The ECtHR criticized the fact that the applicable legislation did not require “any assessment of the proportionality of the measure” and that the police could conduct searches “based exclusively on the “hunch” or “professional intuition” of the officer concerned.” Accordingly, there had been a violation of the right to respect for private life. The Court warned that the legislation could also enable violations of the right to freedom of assembly:
[T]here is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer … There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.
The ECtHR has also frequently condemned arrests or other hindrances caused by the authorities that prevented participants from reaching an assembly and lacked a clear justification. A “refusal to allow an individual to travel for the purpose of attending a meeting amounts to an interference with individual’s freedom of assembly,”[11] Kasparov v. Russia, ECtHR, Judgment of 11 October 2016, para. 66. which must be justified under the three-prong test (see Assembly Section 4). The Court has held that the authorities may not prevent participants from reaching an assembly merely because the assembly is considered unlawful due to the absence of prior notice or authorization (see Assembly Section 11.3).[12] Eğitim ve Bilim Emekçileri Sendikası v. Turkey, ECtHR, Judgment of 5 July 2016, paras. 106-109.
13.3 How should violent participants and agents provocateurs be dealt with?
An individual whose intentions and actions are peaceful does not lose the right to assemble when others turn violent (see Assembly Section 2). The ECtHR has held:
[A]n individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.
It follows that the law-enforcement officials facilitating an assembly must, as far as possible, enable the peaceful participants in an assembly to continue to exercise their rights. They must be prepared and trained to remove individual participants or infiltrators (sometimes referred to as ‘agents provocateurs’) with violent intentions, rather than prohibiting or dispersing the assembly. The joint report on the proper management of assemblies states:
Before countenancing dispersal, law enforcement agencies should seek to identify and isolate any violent individuals separately from the main assembly and differentiate between violent individuals in an assembly and others. This may allow the assembly to continue.
OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly express the same view:
Dispersal should not … result where a small number of participants in an assembly act in a violent manner. In such instances, action should be taken against those particular individuals. Similarly, if agents provocateurs infiltrate an otherwise peaceful assembly, the authorities should take appropriate action to remove the agents provocateurs rather than terminating or dispersing the assembly or declaring it to be unlawful.
The AComHPR has also taken a similar line.
In Frumkin v. Russia, the ECtHR criticized Russian authorities for dispersing an assembly in its entirety rather than trying to isolate one sector that had become turbulent:
The authorities have not shown that prior to declaring the whole meeting closed they had attempted to separate the turbulent sector and target the problems there, so as to enable the meeting to continue in the sector of the stage where the situation remained peaceful. The Court is therefore not convinced that the termination of the meeting … was inevitable.
13.4 Dispersal of assemblies
Dispersal should be resorted to only when strictly unavoidable
The dispersal of assemblies carries a significant risk of escalation and human rights violations. For these reasons, the joint report on the proper management of assemblies urges a high level of restraint in resorting to dispersal:
Dispersing an assembly carries the risk of violating the rights to freedom of expression and to peaceful assembly as well as the right to bodily integrity. Dispersing an assembly also risks escalating tensions between participants and law enforcement. For these reasons, it must be resorted to only when strictly unavoidable.
The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly also warn that the use of dispersal powers often creates more law-enforcement problems than it solves and undermines police-community relationships. They point out that police have options in between non-intervention and dispersal, such as post-event prosecution for violations of the law. For the AComHPR, dispersal should be “a measure of last resort”.[21] AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.1; AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 65, para. 39. It should be used only when de-escalation and containment strategies and targeted arrests of violent individuals have failed:
Where participants in an assembly are acting non-peacefully or in violation of the law, law enforcement officials should use, to the extent possible, communication and de-escalation strategies and measures for the containment of individuals committing or threatening violence or, if necessary and proportionate, the arrest of individuals who are committing or preparing to commit violent acts, before attempting to disperse an assembly.
In what circumstances may dispersal be considered?
The IACHR holds that “breaking up a demonstration can only be justified by the duty to protect persons.” The joint report on the proper management of assemblies states that dispersal of an assembly marred by violence may be considered only
where violence is serious and widespread and represents an imminent threat to bodily safety or property, and where law enforcement officials have taken all reasonable measures to facilitate the assembly and protect participants from harm.
The AComHPR takes a similar line. An important principle is that the authorities should seek to identify and isolate any violent individuals before contemplating dispersal (see Assembly Section 13.3).
Assemblies that remain peaceful may only be dispersed in exceptional cases. The following circumstances do not, by themselves, justify dispersal:
The fact that the organizers have failed to notify the authorities of the assembly in advance (see Assembly Section 11), even where this is required by domestic law;
The fact that the assembly is causing disruption to traffic. This must normally be tolerated (see Assembly section 9.3), and will only justify dispersal in exceptional cases (see Assembly Section 9.3).
The presence of persons perceived to be a risk. As the ECtHR has stated, “it would be wrong to disperse a demonstration simply because some of its participants have a history of violent behaviour.”
In those rare cases where dispersal is in principle warranted, demonstrators should normally be given a chance to convey their views before the authorities break up the assembly (see Assembly Section 11.5).
The joint report recognizes that an assembly that incites to discrimination, hostility or violence contrary to Article 20 ICCPR may warrant dispersal, if less intrusive and discriminatory measures have failed. In R.B. v. Hungary – a case where the applicant, who was of Roma origin, had faced racist insults and been threatened with an axe by participants in a far-right rally – the ECtHR also recognized that “in certain situations the domestic authorities might be required to proceed with the dispersal of a violent and blatantly intolerant demonstration.”[28] R.B. v. Hungary, ECtHR, Judgment of 12 April 2016, para. 99. See also Király and Dömötör v. Hungary, ECtHR, Judgment of 17 January 2017, para. 64.
How should dispersal be handled?
According to the joint report on the proper management of assemblies and the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,[30] OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 165. the steps to be taken before dispersal should be laid down in comprehensive, publicly available guidelines.
The decision to disperse should be taken by an officer of sufficient rank, who has accurate information of the situation unfolding on the ground. In line with the duty of the authorities to communicate effectively with organizers and participants (see Assembly Section 13.5), the first step will always be to clearly inform those present of the intention to disperse the assembly, and to give participants time to leave voluntarily before taking any further action.[32] UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 63; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.4; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 168.
Mass arrests during dispersal should be avoided. The IACtHR has underlined that substantiated evidence of the commission of a crime is needed to justify an arrest:
[A] massive and programmed arrest of people without legal grounds, in which the State massively arrests people that the authority considers may represent a risk or danger to the security of others, without substantiated evidence of the commission of a crime, constitutes an illegal and arbitrary arrest.
The use of force to disperse an assembly should always comply strictly with the principles applicable to the use of force (see Assembly Section 13.7). In line with the necessity and proportionality principle (see Assembly Section 13.7), force should only be used if there is no alternative, and should be limited to the minimum needed. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
The AComHPR states in a similar vein:
If assembly participants are generally behaving peacefully, law enforcement officials must avoid the use of force to disperse the assembly. Where force is deemed to be a lawful and proportionate response, law enforcement officials must only use the minimum level of force necessary.
The need to disperse an assembly will never justify the use of lethal force. The UN Human Rights Council has called on States to ensure, as a priority, that their laws and procedures give effect to the principle that “lethal force may only be used to protect against an imminent threat to life and that it may not be used merely to disperse a gathering.” The IACHR has echoed this, stating:
One derives from the general principles on the use of force that there are no situations authorizing the use of lethal force to break up a protest or demonstration, or to shoot indiscriminately into the multitude. The states should implement mechanisms for effectively prohibiting recourse to the use of lethal force in public demonstrations
The use of firearms for law enforcement during assemblies is subject to specific rules (see Assembly Section 13.8). A core principle is that firearms may never be used simply to control or disperse an assembly.
The right to record (see Assembly Section 15) continues to apply during the dispersal of an assembly. According to the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly,
Third parties (such as monitors, journalists and photographers) may also be asked to disperse, but they should not be prevented from observing and recording the policing operation.
The AComHPR takes a similar view.
13.5 Law enforcement agencies must communicate effectively with organizers and participants
International mechanisms widely stress the importance of open dialogue between the authorities and organizers and participants in assemblies, as a means to avoid or defuse tension and prevent escalation. The UN Human Rights Council has for example underlined “the important role that communication between protestors, local authorities and officials exercising law enforcement duties can play in the proper management of assemblies,” while the joint report on the proper management of assemblies affirms that:
Law enforcement agencies and officials should take all reasonable steps to communicate with assembly organizers and/or participants regarding the policing operation and any safety or security measures.
The report adds that communication must be entirely voluntary and not a means to impose on organizers an obligation to negotiate about restrictions on the assembly.
The IACHR recommends the
Promotion of opportunities for communication prior to demonstrations and of the activities of liaison officers to coordinate with demonstrators concerning … law enforcement operations, in order to avoid conflict situations.
The AComHPR also emphasizes the need for “continuous dialogue and negotiation … to proactively address any issues that may arise during the conduct of an assembly”. Like the IACHR, it suggests appointing communications liaisons:
Law enforcement officials should maintain open communication with all relevant stakeholders, including assembly organisers and participants, other essential services providers and stewards. Law enforcement officials must proactively and continually communicate the intention of the assembly operation, any limitations or restrictions imposed on the assembly and contingency planning in place with stakeholders, and should consider the appointment of a specially trained communication liaison as a focal point for communication with stakeholders.
The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly contain language to similar effect, and state that police operations should be characterized by a policy of “no surprises”. They also recommend the use of negotiation or dialogue to attempt to resolve any stand-off during an assembly:
If a stand-off or other dispute arises during the course of an assembly, negotiation or mediated dialogue may be an appropriate means of trying to reach an acceptable resolution. Such dialogue – although not always successful – can serve as a preventive tool to help avoid the escalation of conflict, the imposition of arbitrary or unnecessary restrictions, or recourse to the use of force.
The authorities’ duty to communicate with the organizers of an assembly is also confirmed by international jurisprudence. According to the ECtHR, it is “an essential part of their positive obligation to ensure the peaceful conduct of the assembly.
The case of Frumkin v. Russia [ click for full case explanation ]
In focus:
Frumkin v. Russia
The applicant in Frumkin v. Russia had participated in a demonstration at Bolotnaya Square in Moscow against alleged “abuses and falsifications” in parliamentary and presidential elections held in 2011 and 2012. The route and conduct of the assembly had been agreed beforehand between the organizers and the authorities, after substantial discussions. The Moscow Department of the Interior had published information about the forthcoming demonstration on its website, including a map indicating the area allotted to the assembly, which included the park at Bolotnaya Square.
When the march approached the square, however, the leaders found that a cordon of riot police barred access to the park and the meeting venue was limited to Bolotnaya embankment, where the organisers had set up a stage. The leaders of the march then demanded that the police open access to the park, and announced a “sit-down strike”, which was joined by 20 to 50 people. At the request of the police, the Ombudsman of the Russian Federation attempted to convince the leaders of the sit-in to resume the procession, but no senior police officers or municipal officials came to the site, and there was no direct communication between the authorities and the leaders of the sit-in.
Although the leaders eventually abandoned the sit-in, some commotion later arose at the same site, with members of the crowd tossing various objects at the police cordon, including a Molotov cocktail. Riot police then began to disperse the demonstration and arrested some participants, including the applicant.
Before the ECtHR, the Russian Government explained that the assembly venue had been limited to the embankment out of a concern that opposition activists were plotting a popular uprising, and as part of this were planning to erect a protest camp in the park of Bolotnaya Square. The Court recognized the possible legitimacy of the authorities’ concerns, but stressed the crucial need to communicate their position openly:
The fact that the police were exercising caution against the park being taken over by a campsite … might have justified the refusal to allow access to the park, given that in any event the assembly had sufficient space for a meeting. Crucially, whatever course of action the police deemed correct, they had to engage with the sit-in leaders in order to communicate their position openly, clearly and promptly.
Although the police had contacted the protest leaders through an intermediary, the Ombudsman, no attempt had been made beforehand to arrange a channel of communication and no effort was made on the spot to communicate with them directly. The Court considered this a striking omission:
In the Court’s view, the controversy about the placement of the police cordon could reasonably have been dealt with had the competent officials been prepared to come forward in order to communicate with the assembly organisers …
The Court’s findings … lead to the conclusion that the police authorities had not provided for a reliable channel of communication with the organisers before the assembly. This omission is striking, given the general thoroughness of the security preparations … Furthermore, the authorities failed to respond to the real-time developments in a constructive manner … no official took any interest in talking to the march leaders showing signs of distress in front of the police cordon …
In the light of the foregoing, the Court finds that in the present case the authorities made insufficient effort to communicate with the assembly organisers to resolve the tension caused by the confusion about the venue layout. The failure to take simple and obvious steps at the first signs of the conflict allowed it to escalate, leading to the disruption of the previously peaceful assembly.
The Court concluded that these failures amounted to a violation of the right to freedom of peaceful assembly:
The Court considers that from any point of view the authorities in this case did not comply with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved.
The authorities have thus failed to discharge their positive obligation in respect of the conduct of the assembly at Bolotnaya Square. There has accordingly been a violation of Article 11 of the Convention on that account.
concerned a rally against alleged electoral fraud that descended into a standoff after riot police barred access to a park that the demonstrators had expected to be able to use. The Court found that the authorities’ failure to communicate effectively with the leaders of the demonstration amounted to a violation of the right to freedom of peaceful assembly:
[I]n the present case the authorities made insufficient effort to communicate with the assembly organisers to resolve the tension caused by the confusion about the venue layout. The failure to take simple and obvious steps at the first signs of the conflict allowed it to escalate, leading to the disruption of the previously peaceful assembly … The Court considers that from any point of view the authorities in this case did not comply with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved.
13.6 Personnel managing assemblies must receive adequate training
The proper management of assemblies can place high demands on the officers to whom it is entrusted. The joint report on the proper management of assemblies stresses the importance of adequate training of law enforcement officials to prepare them for the facilitation of assemblies.
The ECtHR, too, considers that full respect for freedom of peaceful assembly requires that “a system be in place that guarantees adequate training of law enforcement personnel and control and supervision of that personnel during demonstrations.” The Court has not defined the subjects such training should cover, except in one area. It has stated that training must ensure firearms are used only in cases of absolute necessity:
[L]aw-enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value.
The IACtHR has ruled to similar effect:
An appropriate legislation would not fulfill its goal if, inter alia, States would not educate and train members of their armed forces and security agencies on principles and rules of human rights protection and on the limits to which the use of weapons by law enforcement officials must be subject to in all circumstances.
Further guidance on the content that training of law-enforcement personnel should receive has been provided by the UN Special Rapporteur together with the Special Rapporteur on extrajudicial, summary or arbitrary executions, the AComHPR,[60] AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 7. the IACHR,[61] IACHR, Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124 Doc. 5 Rev. 1, 7 March 2006, para. 141. the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly[62] OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, paras. 147-148. and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[63] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principles 18-21. Skills that training should deliver, according to these authorities, include:
- • An understanding of human rights in the context of assemblies, and the important role of assemblies in a democracy;
- • Knowledge of police ethics;
- • Knowledge of the legal framework governing assemblies and the actions of law-enforcement personnel;
- • An understanding of crowd behavior and techniques of crowd facilitation and management;
- • Control and planning of operations;
- • “Soft skills” needed to settle conflicts peacefully, such as verbal and non-verbal communication (see Assembly Section 13.5), negotiation, persuasion and mediation;
- • Alternatives to recourse to force and the imperative of minimizing its use;
- • The correct use of any firearms (see Assembly Section 13.8) or less-lethal weapons (see Assembly Section 13.8) issued;
- • The safety and protection of persons and groups who are particularly vulnerable.
The UN Human Rights Council has called upon States to ensure adequate training not only of law enforcement officials, but also private personnel acting on behalf of the State during assemblies.
13.7 The exceptionality of force when facilitating assemblies
Under international law, the use of force during assemblies must strictly comply with principles of legality, precaution, necessity, proportionality and accountability.
Legality
The circumstances and degree to which force may be used during an assembly must be regulated by law and administrative rules (such as standard operating procedures and rules of engagement), limiting the discretion of law enforcement personnel; this is confirmed by many authorities. The IACHR has stated:
In order to prevent an inappropriate intervention by State forces that could infringe on the human rights of demonstrators, the States should adopt measures both of a regulatory as well as an administrative nature that enable police forces to have clear rules of conduct and the professional training needed to perform their jobs in situations involving mass concentrations of people.
The Grand Chamber of the ECtHR similarly warns that law enforcement personnel should not “be left in a vacuum”, but rather be guided by a legal and administrative framework:
[P]olicing operations must be sufficiently regulated by national law, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force … Police officers should not be left in a vacuum when performing their duties: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect.
Precaution
In preparing for an assembly, the authorities should take steps to avoid the need to use force or, if this is impossible, to minimize the consequences. The ECtHR has stated that the operation should be “regulated and organised in such a way as to minimise to the greatest extent possible any risk to the life of the demonstrators.”[70] Şimşek and Others v. Turkey, ECtHR, Judgment of 26 July 2005, para. 106.
In addition to training (see Assembly Section 13.4), the principle of precaution requires adequate planning for assemblies. The joint report on the proper management of assemblies states:
States should plan properly for assemblies, which requires the collection and analysis of information, anticipation of different scenarios and proper risk assessments. Contingency plans and precautionary measures must also be put in place. Proper planning and preparation requires continuous monitoring of activities and should be adaptable to changing circumstances.
The OSCE-ODIHR Human Rights Handbook on Policing Assemblies and the AComHPR Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa provide guidance on the how to plan for assemblies.
Precaution also requires that law enforcement officials should have access to proper equipment for self-defense and coordination (such as shields, helmets, bullet-proof and fire-retardant clothing, portable communications devices) and appropriate less-lethal weapons (see Assembly Section 13.8), as underlined by many authorities.
The case of Simşek and Others v. Turkey before the ECtHR arose from two assemblies during which police had used live fire in response to acts of violence and resistance, leading to 17 deaths. The ECtHR found that the Turkish State had violated the right to life by failing to deliver proper training, instructions and equipment to the police officers on duty:
It appears from the case file that the police officers who were on duty at both incidents enjoyed great autonomy of action, and they took initiatives whilst in the grip of panic and pressure, which they would probably not have taken had they had the benefit of proper training and instructions. The Court … finds that the absence of a clear, centralised command was an important lacuna which must have increased the risk of police officers shooting directly at the crowd.
Furthermore, it was the responsibility of the Security Forces, who had been aware of the tense situation in both districts, to provide the necessary equipment, such as tear gas, plastic bullets, water cannons, etc., to disperse the crowd. In the Court’s view, the lack of such equipment is unacceptable.
In conclusion, the Court considers that, in the circumstances of the instant case, the force used to disperse the demonstrators, which caused the death of seventeen people, was more than absolutely necessary within the meaning of Article 2.
In equipping law enforcement personnel, regard should also be had to the impression their visual appearance will make on participants, to avoid any provocative or intimidating effect. The UN Special Rapporteur found that massive deployment of force increases tension and aggression begets aggression. The AComHPR similarly states:
In the deployment of officials to an assembly, law enforcement agencies must take into account the potential adverse influence that the visible appearance of law enforcement officials, deployment tactics and equipping of officials at an assembly can have on the way in which an assembly develops.
Necessity and proportionality
The requirement of necessity and proportionality means first that assemblies should ordinarily be managed with no resort to force; force may only be used when the alternatives have been exhausted. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state:
Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
Consistently with this, the IACtHR has held that “force or coercive means can only be used once all other methods of control have been exhausted.” The AComHPR takes the same view.[79] AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.2.
Second, where the use of force becomes unavoidable, it should be directed as precisely as possible at the person(s) necessitating its use. The ECtHR has repeatedly held that force should be “made strictly necessary by a person’s own conduct; the AComHPR states that law enforcement officials using force “must, as far and for as long as possible, differentiate between peaceful assembly participants and those who engage in violent acts.”[81] AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.2.
Third, force should be limited to the minimum extent necessary in the circumstances. The joint report on the proper management of assemblies articulates this requirement as follows:
The proportionality requirement sets a ceiling on the use of force based on the threat posed by the person targeted. This is a value judgement that balances harm and benefit, demanding that the harm that might result from the use of force is proportionate and justifiable in relation to the expected benefit.
The IACtHR has elaborated further on the circumstances relevant to determining whether the force used is indeed the minimum necessary in the circumstances:
To determine the proportionality of the use of force, the severity of the situation that the agent faces must be assessed. To this end, among other circumstances, it is necessary to consider: the level of intensity and danger of the threat; the attitude of the individual; the conditions of the surrounding area, and the means available to the agent to deal with the specific situation. In addition, this principle requires the law enforcement agent, at all times, to reduce to a minimum the harm or injuries caused to anyone, as well as to use the lowest level of force required to achieve the legitimate purpose sought.
The principles of necessity and proportionality apply to all uses of force, including lethal force and the use of firearms (see Assembly Section 13.8). The UN Human Rights Council holds that “lethal force may only be used to protect against an imminent threat to life,” and never in an indiscriminate manner against a crowd, views echoed in the joint report on the proper management of assemblies[85] UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 60. and by the AComHPR.[86] AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 21.1.4.
The IACHR stresses that any use of lethal force should be preceded by a warning from a State agent who clearly identifies himself or herself, unless that is impossible:
Should the use of lethal force be strictly necessary, the rules of conduct should require that the agents of the State first identify themselves as such, and then give the persons involved a clear warning of their intention to use force, so as to give them time to cease and desist, except in those cases where the life or personal safety of third persons or the agents themselves is in imminent danger.
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials contain similar language.
Under Article 2 of the ECHR, the use of lethal force must be “absolutely necessary”. The ECtHR has explained that whether this standard is met depends not only on the actions of the agent administering the force, but also on precautionary measures (see Assembly Section 13.7) such as planning and control:
The use of the term “absolutely necessary” indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” … the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination.
Accountability
Governments are under a duty to establish effective reporting and review procedures for any incidents where law enforcement officials cause injury or death by the use of force (see Assembly Section 14) or discharge a firearm in the performance of their duty (see Assembly Section 13.8).
13.8 Conditions for the use of firearms and less-lethal weapons by law enforcement agents
Which rules govern the use of firearms during assemblies?
The use of firearms during assemblies is fully subject to the principles governing the use of force during assemblies (see Assembly Section 13.7). In addition, a number of specific rules apply.
The principle of legality (see Assembly Section 13.7) means that the use of firearms must be governed by clear rules and regulations so that, in the words of the ECtHR, law enforcement officials are not “left in a vacuum”. Principle 1 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states:
Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.
The principle of precaution (see Assembly Section 13.7) implies that law enforcement officials should be selected by thorough screening procedures and receive continuous and thorough professional training (see Assembly Section 13.6), including in the correct use of firearms issued to them. They should be properly equipped, including with protective clothing and less-lethal weapons to reduce the need to resort to firearms as far as possible.[93] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990), UN Doc. A/CONF.144/28/Rev.1 at 112, Principle 2; UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, paras. 52-55; UN Human Rights Council, Resolution 25/38 on the promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, 11 April 2014, para. 14; IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 143; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 15; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 5.5 and Explanatory Notes, para. 172. Automatic firearms should never be part of the equipment used during assemblies.[94] UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 67(e).
The IACHR considers that firearms and lead munitions should be stored away from the scene of an assembly and only issued to law enforcement officials when a serious and imminent risk arises:
The prohibition on officials who might have contact with demonstrators carrying firearms and lead munitions has proven to be the best measure for preventing lethal violence and deaths in contexts of social protest. The operations may include having firearms and lead munitions somewhere outside the radius of action of the demonstration for those exceptional cases in which there is a situation of actual, serious, and imminent risk to persons that makes their use warranted. In such an extreme circumstance there should be explicit rules concerning who has the power to authorize their use and the ways in which such authorization is to be documented.
In line with the requirement of necessity and proportionality (see Assembly Section 13.7), law enforcement agents may use firearms during an assembly only to the extent necessary to avert a life-threatening situation, and only after exhausting less hazardous alternatives. Firearms may never be used simply to control or disperse (see Assembly Section 13.4) an assembly or to fire indiscriminately into a crowd.[97] UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 60; AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 22.6; IACHR, Annual Report 2015, March 17, 2016, Chapter IV.A, para. 82.
In order to be able to comply with the principle of accountability (see Assembly Section 13.7), States must enact procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them. The IACHR recommends the implementation of ammunition registration and inventories of firearms:
The Commission has … recommended implementing ammunition registration and control systems. Registration of this type, both before and after operations, is an administrative control measure that helps to facilitate judicial and administrative investigations into possible violations of rules and principles on the use of force. Therefore, states should have in place effective mechanisms for making inventories of firearms, ammunition, and other control devices, such as chemical weapons, to be used in a security operation.
The joint report on the proper management of assemblies likewise states that there should be “a clear system of record keeping or register of the equipment provided to individual officers in an operation, including vehicles, firearms and ammunition.”
States should ensure that there is a system of reporting to a superior whenever law enforcement officials use firearms during an assembly. If the use of a firearm causes an injury or death, it triggers the legal obligation to launch an investigation (see Assembly Section 14).
Which rules govern the use of less-lethal weapons during assemblies?
In line with the principle of precaution (see Assembly Section 13.7), States are required under international law to equip their law enforcement agencies with less-lethal weapons, to enable a graduated response to threats and to minimize the use of firearms.
Several international mechanisms have warned that less-lethal weapons may still have injurious or even lethal effects, and have underlined the importance of independent scientific testing of such weapons prior to deployment, and appropriate control of their use, including through training (see Assembly Section 13.6) of and instructions to the law enforcement officials to which they are issued.
The ECtHR has forcefully condemned failures to deliver such training and instructions. In Abdullah Yaşa and Others v. Turkey, it held:
Given that during the events in Diyarbakır between 28 and 31 March 2006 two persons were killed by tear-gas grenades and that the applicant was injured on the same occasion, it may be deduced that the police officers were able to act very independently and take ill-considered initiatives, which would probably not have been the case if they had been given appropriate training and instructions. In the Court’s view, such a situation is incompatible with the level of protection of the physical integrity of individuals which is required in contemporary democratic societies in Europe …
There has accordingly been a violation of Article 3 of the Convention.
The IACHR cautions that a warning should be issued before using less-lethal weapons, and that there should be accountability for improper use:
The use of less lethal weapons should be preceded by formal notices so as to give persons the opportunity to evacuate the zone without provoking situations of panic or stampedes, and guidelines should be put in place for attributing responsibility for their incorrect use.
Tear gas
The UN Special Rapporteur has warned about the dangers of the use of tear gas, due to its indiscriminate nature:
With regard to the use of tear gas, the Special Rapporteur recalls that gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions. He also warns against any modification of the chemical composition of the gas for the sole purpose of inflicting severe pain on protestors and, indirectly, bystanders.
The ECtHR has found violations of human rights in a substantial number of cases in connection with the inappropriate use of tear gas. The Court has underlined the full applicability of the principle of legality (see Assembly Section 13.7) to the use of tear gas:
[P]olice operations – including the launching of tear-gas grenades – should not only be authorised but should also be sufficiently delimited by domestic law, under a system of adequate and effective safeguards against arbitrary action, abuse of force and avoidable accidents.
Furthermore, it has held that the firing of tear-gas grenades along a direct, flat trajectory is prohibited:
In the Court’s view, firing a tear-gas grenade along a direct, flat trajectory by means of a launcher cannot be regarded as an appropriate police action as it could potentially cause serious, or indeed fatal injuries, whereas a high-angle shot would generally constitute the appropriate approach, since it prevents people from being injured or killed in the event of an impact.
Tear gas may not be used “indiscriminately … to the extent that not only the demonstrators but also unconnected persons in the vicinity [are] affected” and “there can be no justification for the use of such gases against an individual who has already been taken under the control of the law enforcement authorities.”[111] Ali Güneş v. Turkey, ECtHR, Judgment of 10 April 2012, para. 41.
Pepper spray
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has expressed its concerns over the use of pepper spray in law enforcement:
[P]epper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control.
13.9 Law-enforcement officials should be individually identifiable
The UN Special Rapporteur, the AComHPR,[114] AComHPR, Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa, 4 March 2017, para. 14.1. the IACHR[115] IACHR, Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124 Doc. 5 Rev. 1, 7 March 2006, para. 68. and the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly[116] OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 153. all state that law-enforcement personnel deployed during an assembly should be clearly and individually identifiable, for example from a nameplate or number that is visible at all times.
The ECtHR has held that States have a duty to effectively investigate injuries and deaths during assemblies (see Assembly Section 14), and that this duty is violated if security forces take steps that make it impossible to identify individual responsibilities.
In Ataykaya v. Turkey [ click for full case explanation ]In focus:
Ataykaya v. Turkey
Ataykaya v. Turkey arose from the death of a passer-by who was struck on the head by a teargas grenade when masked security forces dispersed an assembly. The Court stopped short of making a finding of whether the use of balaclavas by law-enforcement personnel is permissible. However, it held that masked members of the security forces must always be identifiable by other means, such as a warrant number, so that they can be investigated after the event:
The Court takes the view that it is not necessary to assess in general terms whether it is compatible with the Convention for balaclavas to be worn by security forces whose task it is to confront demonstrators. It is obvious, however, that this practice has had, in the present case, the direct consequence of giving those responsible immunity from prosecution. …
The Court finds that this circumstance, namely the inability of eyewitnesses to identify the officer who fired the shot because he was wearing a balaclava, is in itself a matter of concern. In this connection it would refer to its previous finding, under Article 3 of the Convention, to the effect that any inability to determine the identity of members of the security forces, when they are alleged to have committed acts that are incompatible with the Convention, breaches that provision. Similarly, the Court has already stated that where the competent national authorities deploy masked police officers to maintain law and order or to make an arrest, those officers should be required to visibly display some distinctive insignia – for example a warrant number – thus, while ensuring their anonymity, enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted. Those considerations are all the more valid in the present case as it concerns a death following a shot fired by a member of the security forces who was wearing a balaclava.
the Court sidestepped the question whether officers may cover their faces during a demonstration; however, it stated that if a mask or balaclava is worn, the officer must at least “visibly display some distinctive insignia – for example a warrant number” to enable “identification and questioning in the event of challenges to the manner in which the operation was conducted.” The Court has not discussed whether such insignia are also required if the faces of the officers are sufficiently visible to enable identification.